# C_2022340EN.01000401.xml

| 5.9.2022 | EN | Official Journal of the European Union | C 340/4 |
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5.9.2022

EN

Official Journal of the European Union

C 340/4

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Judgment of the Court (Grand Chamber) of 21 June 2022 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Ligue des droits humains v Conseil des ministres

(Case C-817/19) (1)

(Reference for a preliminary ruling - Processing of personal data - Passenger Name Records (PNR) - Regulation (EU) 2016/679 - Article 2(2)(d) - Scope - Directive (EU) 2016/681 - Use of PNR data of air passengers of flights operated between the European Union and third countries - Power to include data of air passengers of flights operated within the European Union - Automated processing of that data - Retention period - Fight against terrorist offences and serious crime - Validity - Charter of Fundamental Rights of the European Union - Articles 7, 8 and 21 as well as Article 52(1) - National legislation extending the application of the PNR system to other transport operations within the European Union - Freedom of movement within the European Union - Charter of Fundamental Rights - Article 45)

(2022/C 340/05)

Language of the case: French

Referring court

Cour constitutionnelle

Parties to the main proceedings

Applicant: Ligue des droits humains

Defendant: Conseil des ministres

Operative part of the judgment

| 1. | Article 2(2)(d) and Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the processing of personal data envisaged by national legislation intended to transpose, into domestic law, the provisions of Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, those of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States and repealing Directive 2002/6/EC and also those of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, in respect of, on the one hand, data processing operations carried out by private operators and, on the other hand, data processing operations carried out by public authorities covered, solely or in addition, by Directive 2004/82 or Directive 2010/65. By contrast, the said regulation does not apply to the data processing operations envisaged by such legislation which are covered only by Directive 2016/681 and are carried out by the passenger information unit (PIU) or by the authorities competent for the purposes referred to in Article 1(2) of that directive. |
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1.

Article 2(2)(d) and Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the processing of personal data envisaged by national legislation intended to transpose, into domestic law, the provisions of Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data, those of Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on reporting formalities for ships arriving in and/or departing from ports of the Member States and repealing Directive 2002/6/EC and also those of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime, in respect of, on the one hand, data processing operations carried out by private operators and, on the other hand, data processing operations carried out by public authorities covered, solely or in addition, by Directive 2004/82 or Directive 2010/65. By contrast, the said regulation does not apply to the data processing operations envisaged by such legislation which are covered only by Directive 2016/681 and are carried out by the passenger information unit (PIU) or by the authorities competent for the purposes referred to in Article 1(2) of that directive.

| 2. | Given that an interpretation of Directive 2016/681 in the light of Articles 7, 8 and 21 as well as Article 52(1) of the Charter of Fundamental Rights of the European Union ensures that that directive is consistent with those articles of the Charter of Fundamental Rights, the examination of Questions 2 to 4 and Question 6 referred for a preliminary ruling has revealed nothing capable of affecting the validity of the said directive. |
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2.

Given that an interpretation of Directive 2016/681 in the light of Articles 7, 8 and 21 as well as Article 52(1) of the Charter of Fundamental Rights of the European Union ensures that that directive is consistent with those articles of the Charter of Fundamental Rights, the examination of Questions 2 to 4 and Question 6 referred for a preliminary ruling has revealed nothing capable of affecting the validity of the said directive.

| 3. | Article 6 of Directive 2016/681, read in the light of Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which authorises passenger name records (PNR data) collected in accordance with that directive to be processed for purposes other than those expressly referred to in Article 1(2) of the said directive. |
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3.

Article 6 of Directive 2016/681, read in the light of Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which authorises passenger name records (PNR data) collected in accordance with that directive to be processed for purposes other than those expressly referred to in Article 1(2) of the said directive.

| 4. | Article 12(3)(b) of Directive 2016/681 must be interpreted as precluding national legislation pursuant to which the authority put in place as the passenger information unit (PIU) is also designated as a competent national authority with power to approve the disclosure of PNR data upon expiry of the period of six months after the transfer of those data to the PIU. |
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4.

Article 12(3)(b) of Directive 2016/681 must be interpreted as precluding national legislation pursuant to which the authority put in place as the passenger information unit (PIU) is also designated as a competent national authority with power to approve the disclosure of PNR data upon expiry of the period of six months after the transfer of those data to the PIU.

| 5. | Article 12(1) of Directive 2016/681, read in conjunction with Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which provides for a general retention period of five years for PNR data, applicable indiscriminately to all air passengers, including those for whom neither the advance assessment under Article 6(2)(a) of that directive nor any verification carried out during the period of six months referred to in Article 12(2) of the said directive nor any other circumstance have revealed the existence of objective evidence capable of establishing a risk that relates to terrorist offences or serious crime having an objective link, even if only an indirect one, with the carriage of passengers by air. |
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5.

Article 12(1) of Directive 2016/681, read in conjunction with Articles 7 and 8 as well as Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which provides for a general retention period of five years for PNR data, applicable indiscriminately to all air passengers, including those for whom neither the advance assessment under Article 6(2)(a) of that directive nor any verification carried out during the period of six months referred to in Article 12(2) of the said directive nor any other circumstance have revealed the existence of objective evidence capable of establishing a risk that relates to terrorist offences or serious crime having an objective link, even if only an indirect one, with the carriage of passengers by air.

| 6. | Directive 2004/82 must be interpreted as not applying to flights, whether scheduled or non-scheduled, carried out by an air carrier flying from the territory of a Member State and that are planned to land on the territory of one or more of the other Member States, without any stop-overs in the territory of a third country (intra-EU flights). |
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6.

Directive 2004/82 must be interpreted as not applying to flights, whether scheduled or non-scheduled, carried out by an air carrier flying from the territory of a Member State and that are planned to land on the territory of one or more of the other Member States, without any stop-overs in the territory of a third country (intra-EU flights).

| 7. | EU law, in particular Article 2 of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU and Article 45 of the Charter of Fundamental Rights, must be interpreted as precluding:






  — | national legislation which, in the absence of a genuine and present or foreseeable terrorist threat with which the Member State concerned is confronted, establishes a system for the transfer, by air carriers and tour operators, as well as for the processing, by the competent authorities, of the PNR data of all intra-EU flights and transport operations carried out by other means within the European Union, departing from, going to or transiting through that Member State, for the purposes of combating terrorist offences and serious crime. In such a situation, the application of the system established by Directive 2016/681 must be limited to the transfer and processing of the PNR data of flights and/or transport operations relating, inter alia, to certain routes or travel patterns or to certain airports, stations or seaports for which there are indications that are such as to justify that application. It is for the Member State concerned to select the intra-EU flights and/or the transport operations carried out by other means within the European Union for which there are such indications and to review regularly that application in accordance with changes in the circumstances that justified their selection, for the purposes of ensuring that the application of that system to those flights and/or those transport operations continues to be limited to what is strictly necessary, and |
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7.

EU law, in particular Article 2 of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU and Article 45 of the Charter of Fundamental Rights, must be interpreted as precluding:

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national legislation which, in the absence of a genuine and present or foreseeable terrorist threat with which the Member State concerned is confronted, establishes a system for the transfer, by air carriers and tour operators, as well as for the processing, by the competent authorities, of the PNR data of all intra-EU flights and transport operations carried out by other means within the European Union, departing from, going to or transiting through that Member State, for the purposes of combating terrorist offences and serious crime. In such a situation, the application of the system established by Directive 2016/681 must be limited to the transfer and processing of the PNR data of flights and/or transport operations relating, inter alia, to certain routes or travel patterns or to certain airports, stations or seaports for which there are indications that are such as to justify that application. It is for the Member State concerned to select the intra-EU flights and/or the transport operations carried out by other means within the European Union for which there are such indications and to review regularly that application in accordance with changes in the circumstances that justified their selection, for the purposes of ensuring that the application of that system to those flights and/or those transport operations continues to be limited to what is strictly necessary, and

| — | national legislation providing for such a system for the transfer and processing of those data for the purposes of improving external border controls and combating illegal immigration. |
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national legislation providing for such a system for the transfer and processing of those data for the purposes of improving external border controls and combating illegal immigration.

| 8. | EU law must be interpreted as precluding a national court from limiting the temporal effects of a declaration of illegality which it is bound to make under national law in respect of national legislation requiring carriers by air, by rail and by road as well as tour operators to transfer PNR data, and providing for the processing and retention of those data, in breach of the provisions of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU, Articles 7, 8 and 45 as well as Article 52(1) of the Charter of Fundamental Rights. The admissibility of the evidence thus obtained is, in accordance with the principle of procedural autonomy of the Member States, a matter for national law, subject to compliance, inter alia, with the principles of equivalence and effectiveness. |
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8.

EU law must be interpreted as precluding a national court from limiting the temporal effects of a declaration of illegality which it is bound to make under national law in respect of national legislation requiring carriers by air, by rail and by road as well as tour operators to transfer PNR data, and providing for the processing and retention of those data, in breach of the provisions of Directive 2016/681, read in the light of Article 3(2) TEU, Article 67(2) TFEU, Articles 7, 8 and 45 as well as Article 52(1) of the Charter of Fundamental Rights. The admissibility of the evidence thus obtained is, in accordance with the principle of procedural autonomy of the Member States, a matter for national law, subject to compliance, inter alia, with the principles of equivalence and effectiveness.

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(1)  OJ C 36, 3.2.2020.

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